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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: DR. BUDHIKOTA SUBHARAO

DATE OF JUDGMENT16/03/1993

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) PANDIAN, S.R. (J)

CITATION:  1993 SCR  (2) 329        1993 SCC  (2) 567  JT 1993 (3)   389        1993 SCALE  (2)44

ACT: Code of Criminal Procedure 1973 : Section 197--Cognizance of offence  by  public servants--Nature of power  exercised  by Courts--Extent    of   protection   afforded    to    public servants--Sanction to prosecution--Requirement of. Words and Phrases--Meaning of ’Official’--Official Duty’.

HEADNOTE: The  respondent  in the appeal was an ex-Naval  Captain  who achieved  notable success in the field of  computer  science and  software  during the period be was  attached  with  the Bhabha Atomic Research Centre and had voluntarily opted  out of service in 1987.  He was arrested on 30th May, 1988 just, when  he  was  about to board a plane  for  New  York.   His residence was searched on the next day.  From the  documents recovered from search of the hand bag on 30th and  residence on  31st  and  his interrogation, it appeared  that  he  was guilty of violating provisions of the Official Secrets  Act, 1923 and Atomic Energy Act, 1962 and, therefore, a complaint was  riled,  against him after obtaining  permission,  under Section  3(1)(c), 3(1)(c) read with Sections 9, 6(2)(a)  and 6(2)(b)  of  the O.S. Act and 24(1)(d) read with  18(2)  and 24(2)(d) read with Section 19(b) of the A.E. Act before  the Metropolitan  Magistrate who being prima facie satisfied  of the  offences  and their gravity committed  the  accused  to stand trial before the Court of Sessions. The accused assailed the framing of charge contending  that, on  facts, no offence under either of the Statutes was  made out, and if any offence for which he could be charge-sheeted could  be under Section 5 of the O.S. Act.  The Trial  Judge turned  down the plea by order dated 24/27th February,  1989 and fixed date for framing the charge. A  revision  against this order was dismissed  by  the  High Court  on  6th  June, 1989, and was  challenged  by  way  of Special  Leave Petition in this Court, but it was  permitted to be withdrawn. 312 The accused thereafter invoked the inherent jurisdiction  of the  High Court seeking review of the order dated 6th  June, 1989  and  although  the application was  rejected  on  18th September,  1989 but an observation was made that there  was no  impediment in the way of the Trial Judge in altering  or

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modifying  or reviewing any of the charges or  even  framing new or additional charge.  This provided an occasion to  the accused for starting proceedings, afresh, for his  discharge and claim in the alternative to framecharge under Section  5 of  O.S. Act instead of under Section 3, for which  purposed he moved an application which was allowed by the Trial Judge on  15th January, 1990, and the charges under A.E. Act  were dropped.   The charge under the O.S. Act was altered to  one under  Section  5 of the Act.  This order was set  aside  on 3rd/4th  April’, 1990 by a Single Judge and the Trial  Judge was directed to frame charges both under Sections 3 and 5 of the O.S. Act. The  accused  approached  the  Division  Bench  against  the aforesaid  order  by way of an application speaking  to  the Minutes  for clarification of the order passed by  the  High Court on 3rd/4th April, 1990 as the Single Judge who  passed the  order  on 3rd/4th April, 1990 did  not  appreciate  the observations made by the Division Bench, but it was rejected on 24th July, 1990 as there was no system of speaking to the Minutes  by  doing  which the order  could  be  reviewed  in criminal  proceedings.   The Division Bench  dismissed  this application  and observed that remedy of the accused was  to approach the court in proper forum. When  the  matter ’was thereafter taken up for  framing  the charge the accused, once again, claimed that he was entitled to be heard at stage of Section 227 of the Code of  Criminal Procedure  and he was entitled to be discharged.  The  Trial Judge   by  order  dated  6th  August,  1990  rejected   the application,  restored  the  earlier charges  and  framed  a charge under Section 5 as well. The  validity  of  the  aforesaid  framing  of  charges  was challenged  by  way  of a  Writ  Petition  (Criminal)  under Articles 226 and 227 of the Constitution, and it was claimed that the entire proceedings being violative of Article 21 of the Constitution were liable to be quashed.  The High  Court did  not  find  any substance but by its  order  dated  24th March,  1991  directed the ASJ to decide if  sanction  under Section 197 of the Code was required, and also to  determine whether the authorisation under Section 313 5  of  the O.S. Act and 7 of the Atomic Energy  Act  was  in accordance with law. Pursuant  to  the aforesaid direction the ASJ  examined  the material  on record and observed that authorisation was  not proper, but refrained from expressing any opinion in view of the  direction of the High Court to ,decide the  requirement of  sanction  under  Section 197 of  the  Code  of  Criminal Procedure,  first, and the effect, in law, of  its  absence. It was held that the documents seized from the possession of the accused indicated that they were inseparably  interwined with  performance of his official duties and therefore,  the prosecution could not have been initiated without sanction. The  High  Court in revision decided both the  questions  in favour  of the accused, holding that the  authorisation  for institution of prosecution, for offences allegedly committed under   either   Statute,  was  invalid   as   even   though authorisation  was  issued,  in favour  of  the  Prosecuting Inspector  who  was also the Investigating Officer,  but  it having  been issued by an authority other than  the  Central Government  it  was  not in accordance  with  law.   On  the question of sanction under Section 197 of the Code, the High Court  agreed  with  the  A.SJ.  that  the  charges   itself indicated that the offences were committed during the period the accused was a serving officer, therefore, in absence  of the sanction no cognizance of any of the offences could have

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been taken. In  the  appeal to this Court on the  question  whether  the judgment of the High Court, affirming the order of the Trial Judge  discharging  the  accused,  is  if  the  absence   of sanction,  by the appropriate authority, under  Section  197 Cr.  P.C. for prosecuting a retired public servant, vitiates the proceedings. Dismissing the appeal, this Court, HELD : 1. Section 197 Cr.  P.C. falls in the Chapter dealing with conditions requisite for initiating of proceedings.  If the conditions mentioned are not made out or are absent then no prosecution can be set in motion. [321C] 2. So far as public servants are concerned cognizance of any offence,  by  any  Court, is barred by  Section  197  unless sanction  is  obtained from appropriate  authority,  if  the offence, alleged to have been committed, 314 was in discharge of the official duty.  The Section not only specified the persons to whom the protection is afforded but it also specifies the conditions and circumstances in  which it  shall  be  available  and  the  effect  in  law  if  the conditions are satisfied. [321E] 3.  The mandatory character of the protection afforded to  a public  servant is brought out by the expression, ’no  court shall  take  cognizance  of such  offence  except  with  the previous sanction’.  Use of the words, ’no’ and ’shall  make it abundantly clear that the bar on the exercise of power of the Court to take cognizance of any offence is absolute  and complete.  Very cognizance is barred.  That is the complaint cannot be taken notice of. [321F-G] 3(i).   In common parlance ’cognizance’ means taking  notice of.   A Court, therefore, is precluded from  entertaining  a complaint or taking notice of it or exercising  jurisdiction if it is in respect of a public servant who is accused of an offence  alleged to have been committed during discharge  of his official duty. [321H] (ii)’Official’  means pertaining to an office.  An  official act or official duty means an act or duty done by an officer in  his official capacity.  ’Official duty’ implies that  an act or omission must have been done by the public servant in course  of  his  service and that it  should  have  been  in discharge  of  his duty.  The section does  not  extend  its protective  cover to every act or omission done by a  public servant  in service but restricts its scope of operation  to only  those  acts or omissions which are done  by  a  public servant in discharge of official duty’. [322G] S.B. Saha v. M.S. Kochar, AIR 1979 SC 1841 and P.  Arulswami v.  State  of  Madras, [1967] 1 SCR 201 =AIR  1967  SC  776, referred to. [322B-G] 4.   Section  197  has  to  be  construed,  strictly   while determining  its  applicability to any act  or  omission  in course of service.  Its operation has to be limited to those duties which are discharged in course of duty.  But once any act  or omission has been found to have been committed by  a public  servant  in discharge of his duty then  it  must  be given  liberal  and wide construction so  far  its  official nature  is concerned.  For instance a public servant is  not entitled to indulge in criminal activities.  To that  extent the  section has to be construed narrowly and in  restricted manner.  But once it is established that an act or  omission was done by the public 315 servant  while  discharging his duty then the scope  of  its being  official  should be construed so as  to  advance  the objective  of the section in favour of the  public  servant.

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Otherwise  the entire purpose of affording protection  to  a public  servant  without sanction  shall  stand  frustrated. [323F-G] 5.  A  police officer in discharge of duty may have  to  use force  which may be an offence for the prosecution of  which the  sanction  may be necessary.  But if  the  same  officer commits an act in course of service but not in discharge  of his  duty then the bar under Section 197 of the Code is  not attracted. [323H] Baijnath  v.  State  of Madhya Pradesh,  AIR  1966  SC  220, referred to. [324A] 6.  If  on facts, it is prima facie found that  the  act  or omission  for which the accused was charged  had  reasonable connection  with discharge of his duty then it must be  held to be official to which applicability of Section 197 of  the Code cannot be disputed. [324D] In  the instant case, five charges were framed  against  the respondent  accused.  First two related to Section 3(1)  and 3(1)(c)  of  the  O.S.  Act.  Third  and  fifth  related  to Sections 6 (2) (a) and 5 of the O.S. Act and fourth  related to  violation of Section 18(2) and 19 of A.E. Act.   In  the very  first  charge  after narrating  the  period  when  the accused  was  employed  and  when  he  opted  for  voluntary retirement  it  is stated that it was during the  course  of this  period  that  he was  in  communication  with  foreign agents, within or without India and for purpose  prejudicial to  the  safety  or interest of the State  he  obtained  and collected  top  secret and secret official  documents.   The High  Court  and the Trial Judge, both, found  that  it  was clear  that the documents which were seized from  possession of  the accused and were subject matters of indictment  were obtained  by  him  when  he was  in  service  prior  to  his retirement in 1987. [324F-G] 7. In respect of charge 2, the High Court rightly found that the  use of words, ’during the said time and place’  related back  to  what was stated in charge no. 1,  namely,  to  the period  when  the accused was in service.   It  was  rightly found  that  ambiguity.   If any, in charges I  to  4  stood completely removed by charge no. 5 which left no doubt  that the intention and purpose of framing the charge against  the accused  was to indict him for whatever he had  done  during the period when he was employed in the Navy 316 as  the  alternative charge clearly stated that  during  his deputation between 1976 and 1987 with BA.R.C. he had  access to  secret  documents which he communicated to  the  persons other  than  those  who  were  authorised  to  receive  such information, Charge no. 3 related, to retention of  Identity Card  during  service  and charge no. 4 was  in  respect  of taking out information in form of books pertaining to atomic energy the information of which had been obtained illegally, obviously  when the accused was in service.  Therefore,  the act  or omission which furnished foundation  for  indicating the  accused either under O.S. Act or A.E. Act were  related to  the  period when he Was in service.  The narrow  or  the stricter  test to determine if the sanction for  prosecuting the accused was necessary was thus satisfied. [325B-E] 8.  As  is  clear from the charge itself  the  accused  was, selected  in course of his employment in the Navy  to  study the feasibility of nuclear power, propelled submarine vessel along with a team of officers and was attached with B.A.R.C. as second officer in command.  He joined the project in 1976 and was associated with the Centre for nearly 10 years.  The accused  while working with B.A.R.C. not only  obtained  Ph.

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D.  but was even awarded gold medal for his achievements  in computer  technology and control engineering and  a  special Herbert Lott Memorial Award for his inventions in  improving the  existing,  fighting devices of the  Navy.   The  thesis written by the accused on which he was awarded Ph.  D.  were seized by the prosecution.  The papers were written and  the books published when the accused was attached with  B.A.R.C. as a Second Officer-in-Command and, therefore, the  material or documents which were found by him cannot be said to  have been  collected or procured by him by going out of  way  and beyond  the  discharge of his duties as an  officer  in  the Naval  Department.   May  be  some  of  them  were   secret, confidential  or unclassified items.  But the  accused  came across them and obtained their copies in course of his  duty as  an  officer  attached to B.A.R.C. Charge  No.  2  is  in respect  of classified information obtained by him  when  he was in Naval Service.  Taking out of information obtained in course  of employment was thus squarely covered  by  Section 197.   Whether  it  was  for communication  or  not  is  not material.  Retention of Identity Card issued during  service may  be  dereliction of duty but it was committed  when  the accused  was  in  service and it was  issued  to  him  while discharging his duties as a Naval Officer. [326F-H, 327A-F] 317 9.  The  High  Court and the Trial  Court  appear  to  have, rightly, inferred that whatever material came in  possession of the accused was as a result of discharge of his duty as a Naval  Officer.  If this be so then even the second and  the most  important  requirement  of  acting  in  discharge   of official duty was satisfied.  Therefore, without  expressing any  opinion  on merits we are of the opinion  that  it  was necessary for the prosecution to have obtained sanction  for prosecuting the accused. [327H, 328A] 10.  The  courts below did not commit any error  of  law  in coming  to  conclusion  that  the  entire  proceedings  were vitiated  as no cognizance of the offences could  have  been taken against the accused without complying with  provisions of Section 197 of the Code. [328D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 276  of 1993. From  the Judgment and Order dated 12.10.1991 of the  Bombay High Court in Crl.  Revision Application No. 123 of 1991. Altaf  Ahmed,  Addl.  Solicitor General,  B.R.  Handa,  Mrs. Manjula  Rao, S.M. Jadhav, A.S. Bhasme and  A.M.  Khanwilkar for the Appellant. Dr. B. Subba Rao Respondent-in-person. V.M. Tarkunde, A.M. Khanwilkar and A.K. Panka for the Inter- venor. The Judgment of the Court was delivered by R.M.  SAHAI,  J.  The principal question  of  law,  and,  an important  one, that arises for consideration in Appeal  No. 276  of 1993 [arising out of S.L.P.(Crl.) No. 986  of  1992] which  shall reflect on Appeal No. 277 of 1993 [arising  out of  S.L.P.  (Crl.) No. 987 of 1992], as well, filed  by  the State  of Maharashtra against the judgment and order of  the Bombay  High Court, affirming the order of the  Trial  Judge discharging  the accused, is if the absence of sanction,  by the  appropriate  authority,  under  Section  197   Criminal Procedure  Code  (in  short ’the Code’)  for  prosecuting  a retired public servant, vitiates the proceedings.

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Although facts are brief and simple too, but the High Court, unfortunately,  instead of confining itself to the  legality of discharge, either for 318 lack  of the sanction under Section 197 of the Code  or  for the  improper authorisation under the Official  Secrets  Act 1923  (in brief ’the O.S. Act’) and Atomic Energy  Act  1962 (referred to as ’A.E.Act’) the two statutes for violation of which  the  accused  was charged, was  led  away  to  record findings  as  if the accused was deliberately  subjected  to undue   harassment  by  the  State  aided  by  the   alleged unreasonable attitude of the Public Prosecutor.  So much  so that  the  learned  Judge  allowed  an  application  of  the accused,  in  the revision filed by the  State  against  his discharge,  and set aside the order of  Additional  Sessions Judge (in brief ’ASJ’) framing charges against him as it was vitiated by fraud, merely because the State did not file any counter-affidavit and insisted that the argument being  same as  were  advanced in the revision it was not  necessary  to file any reply, even though the learned Judge was aware that the  accused had earlier approached the High  Court  against the  order  rejecting  his application that  no  charge  was liable  to be framed against him without any  success.   Not only  that the learned Judge did not spare, even,  this  Co- art,  for cancelling bail of the accused at  earlier  stage. Needless  to say that the first was unnecessary’ the  second illegal  and  is subject matter of appeal No.  277  of  1993 [arising out of S.L.P. (Crl.) No. 987 of 1992] and the third improper. Since the accused was discharged by the Trial Judge, mainly, due to technical defects and the decision was rendered as  a preliminary issue on direction of the High Court, suffice it to  say that the accused, an ex-Naval Captain  who  achieved not  able  success  in the field  of  computer  science  and software  during  the  period he was  attached  with  Bhabha Atomic Research Centre, (in short B.A.R.C.) had  voluntarily opted  out  of service in 1987, was arrested  on  30th  May, 1988, just, when he was about to board a plane for New York. His  residence  was  searched on the  next  day.   From  the documents recovered, from search of the hand bag on 30th and residence on 31st and his interrogation, it appeared that he was guilty of violating provisions of O.S. Act and A.E. Act, therefore, a complaint was filed, against him after  obtain- ing  permission,  under Section 3(i)(c), 3(1)(c)  read  with Sections  9,  6(2)(a)  and  6(2)(b) of the  O.  S.  Act  and 24(1)(d)  read  with Sections 18(2) and 24(2)(d)  read  with Section  19(b)  of  the A.E.  Act  before  the  Metropolitan Magistrate  who being prima facie satisfied of the  offences and  their  gravity  committed the accused  to  stand  trial before  the  Court  of Sessions.  Effort  was  made  by  the accused  to  assail the framing of charge, as  according  to him,  on facts, no offence under either of the Statutes  was made out.  And offence if any for which he could be  charge- sheeted could be under Section 5 only.  The 319 Trial  Judge  turned down the plea by  order  dated  24/27th February,  1989  and fixed date for framing the  charge.   A revision,  against  this order, was dismissed  by  the  High Court,  on  6th  June, 1989.  It was challenged  by  way  of Special Leave Petition in this Court.  But it was  permitted to  be  withdrawn.   The accused  however  invoked  inherent jurisdiction  of the High Court seeking review of the  order dated   6th  June,  1989.   Although  the  application   was rejected, on 18th September 1989 but an observation was made that  there was no impediment in way of the Trial  Judge  in

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altering  or  modifying or reviewing any of the  charges  or even  framing  new or additional charge.  This  provided  an occasion  to the accused for starting  proceedings,  afresh, for  his  discharge and claim in the  alternative  to  frame charge under Section 5 of O.S. Act instead of under  Section 3.  The application was allowed by the Trial Judge  on  15th January  1990, and the charges under A.E. Act were  dropped. The  charge  under  the O.S. Act was altered  to  one  under Section  5 of the Act.  The order was set aside  on  3rd/4th April,  1990 by a learned Single Judge and the  Trial  Judge was directed to frame charges both under Sections 3 and 5 of the O.S. Act.  Against this order the accused approached the Division  Bench,  by what is described as, speaking  to  the Minutes  for clarification of the order passed by  the  High Court on 3rd/4th April, 1990 as the learned Single Judge who passed  the order on 3rd/4th April, 1990 did not  appreciate the  observations  made by the Division Bench,  but  it  was rejected  on  24th  July  1990 as there  was  no  system  of speaking  to the Minutes by doing which the order  could  be reviewed   in  criminal  proceedings.   The  Bench   however observed  that  remedy of the accused was  to  approach  the court in proper forum.  Therefore when the matter was  taken up  for framing the charge the accused, once again,  claimed that he was entitled to be heard at stage of Section 227  of the  Code and he was entitled to be discharged.   The  Trial Judge  by  order  dated  6th.   August  1990  rejected   the application,  restored  the  earlier charges  and  framed  a charge  under Section 5 as well.  Validity of  the  charges, thus,  framed  was  challenged  by  way  of  Writ   Petition (Criminal)  under Articles 226 and 227 of  the  Constitution and  it was claimed that entire proceedings being  violative of Article 21 of the Constitution were liable to be quashed. The  High  Court  did not find any substance in  it  but  it directed the ASJ by its order 24th March, 1991 to decide  if sanction under Section 197 of the Code was required and also to determine if authorisation under Section of O.S. Act  and A.E. Act was in accordance with law. In pursuance of this direction the ASJ examined the material on  record and observed that authorisation, was  not  proper but refrained from 320 expressing any opinion in view of the direction of the  High Court  to decide the requirement of sanction  under  Section 197  of  the  Code, first, and the effect, in  law,  of  its absence.   The  ASJ  held that  the  documents  seized  from possession   of  the  accused  indicated  that   they   were inseparably  interwined  with performance  of  his  official duties whilst in Navy, therefore, the prosecution could  not have been initiated without sanction.  In revision filed  by the  State  the High Court, decided both  the  questions  in favour  of the accused.  It was held that the  authorisation for  institution  of  prosecution,  for  offences  allegedly committed  under either Statute, was invalid as even  though authorisation  was  issued,  in favour  of  the  Prosecuting Inspector who was the Investigating Officer, but. it  having been   issued  by  an  authority  other  than  the   Central Government  it  was  not in accordance  with  law.   On  the question of sanction under Section 197 of the Code the  High Court agreed with the ASJ that the charges itself  indicated that  the  offences  were committed during  the  period  the accused was a serving officer, therefore, in absence of  the sanction  no  cognizance of any of the offences  could  have been taken. discharging  the  accused  it may not be  out  of  place  to examine  the  nature of power exercised by the  Court  under

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Section  197  of the Code and the extent  of  protection  it affords  to public servant, who apart, from various  hazards in discharge of their duties, in absence of a provision like the  one may be exposed to vexatious prosecutions.   Section 197(1) and (2) of the Code reads as under :               "197 (1) When any person who is or was a Judge               or   Magistrate  or  a  public   servant   not               removable from his office save by or with  the               sanction  of the Government is accused of  any               offence alleged to have been committed by  him               while  acting  or  purporting to  act  in  the               discharge of his official duty, no Court shall               take  cognizance of such offence  except  with               the previous sanction-               (a)  in the case of a person who  is  employed               or,  as  the case may be, was at the  time  of               commission of the alleged offence employed, in               connection  with the affairs of the Union,  of               the Central Government;               (b)  in the case of a person who  is  employed               or, as the 321               case may be, was at the time of commission  of               the  alleged offence employed,  in  connection               with  the  affairs of a State,  of  the  State               Government.               (2)  No  Court shall take  cognizance  of  any               offence alleged to have been committed by  any               member of the Armed Forces of the Union  while               acting  or purporting to act in the  discharge               of his official duty, except with the previous               sanction of the Central Government." The  section  falls in the Chapter dealing  with  conditions requisite  for  initiation of proceedings.  That is  if  the conditions mentioned are not made out or are absent then  no prosecution   can  be  set  in  motion.   For  instance   no prosecution  can be initiated in a court of  Sessions  under Section  193,  as it cannot take cognizance, as a  court  of original  jurisdiction, of any offence unless the  case  has been  committed to it by a Magistrate or the code  expressly provides  for it.  And the jurisdiction of a  Magistrate  to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report  or upon information received from any  person  other than police officer, or upon his knowledge that such offence has  been committed.  So far public servants  are  concerned the  cognizance of any offence, by any court, is  barred  by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have  been committed,  was  in  discharge of the  official  duty.   The Section   not  only  specifies  the  persons  to  whom   the protection is afforded but it also specifies the  conditions and  circumstances  in which it shall be available  and  the effect  in  law  if  the  conditions  are  satisfied.    The mandatory  character of the protection afforded to a  public servant  is brought out by the expression, ’no  court  shall take  cognizance  of such offence except with  the  previous sanction’.   Use  of  the words, ’no’ and  ’shall’  make  it abundantly  clear that the bar on the exercise of  power  of the Court to take cognizance of any offence is absolute  and complete.  Very cognizance is barred.  That is the complaint cannot  be  taken  notice  of.   According  to  Black’s  Law Dictionary  the  word ’cognizance’ means  ’jurisdiction’  or ’the  exercise  of  jurisdiction’  or  ’power  to  try   and determine  causes’.   In  common parlance  it  means  taking

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notice   of.    A  court,  therefore,  is   precluded   from entertaining   a  complaint  or  taking  notice  of  it   or exercising  jurisdiction  if it is in respect  of  a  public servant  who  is  accused  of an  offence  alleged  to  have committed during discharge of his official duty. 322 the expression, ’any offence alleged to have been  committed by him while acting or purporting to act in the discharge of his  official  duty,  be understood?   What  does  it  mean? ’Official’  according to dictionary means pertaining  to  an office.   And official act or official duty means an act  or duty  done by an officer in his official capacity.  In  S.B. Salta v. M.S. Kochar, AIR 1979 SC 1841, it was held.               "The  words ’any offence alleged to have  been               committed by him while acting or purporting to               act  in  the discharge of his  official  duty’               employed  in Section 197 (1) of the Code,  are               capable  of a narrow as well as a wide  inter-               pretation.   If these words are construed  too               narrowly,   the  Section  will   be   rendered               altogether sterile, for, ’it is no part of  an               official duty to commit an offence, and  never               can be’.  In the wider sense, these words will               take   under   their   umbrella   every    act               constituting  an  offence,  committed  in  the               course  of the same transaction in  which  the               official  duty is performed or purports to  be               performed.               The  right  approach to the  import  of  these               words lies between these two extremes.   While               on  the  one  hand, it is  not  every  offence               committed by a public servant while engaged in               the performance of his official duty, which is               entitled to the protection of Section  197(1),               an  act constituting an offence, directly  and               reasonably  connected with his  official  duty               will  require sanction for  prosecution  under               the said provision." Use  of the expression, ’official duty’ implies that act  or omission must have been done by the public servant in course of his service and that it should have been in discharge  of his duty.  The section does not extend its protective  cover to every act or omission done by a public servant in service but  restricts its scope of operation to only those acts  or omissions which are done by a public servant in discharge of official duty.  In P. Arulswami v. State of Madras, [1967] 1 SCR  201  = AIR 1967 SC 776 this Court after  reviewing  the authorities  right from the days of Federal Court and  Privy Council held, "It is not therefore every offence committed by a public 323 servant that requires sanction for prosecution under Section 197(1)  of the Criminal Procedure Code; nor even  every  act done by him while he is actually engaged in the  performance of  his  official duties; but if the act  complained  of  is directly  concerned  with his official duties  so  that,  if questioned, it could be claimed to have been done by  virtue of the office, then sanction would be necessary.  It is  the quality of the act that is important and if it falls  within the  scope and range of his official duties  the  protection contemplated by s.197 of the Criminal Procedure Code will be attracted.  An offence may be entirelY unconnected with  the official  duty  as such or it may be  committed  within  the scope  of the official duty.  Where it is  unconnected  with the  official duty there can be no protection.  It  is  only

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when  it is either within the scope of the official duty  or in excess of it that the protection is claimable." It has been widened further by extending protection to  even those acts or omissions which are done in purported exercise of  official  duty.   That is under the  colour  of  office. Official  duty  therefore implies that the act  or  omission must  have been done by the public servant in course of  his service and such act or omission must have been performed as part  of  duty  which further must  have  been  official  in nature.   The section has, thus, to be  construed,  strictly while determining, its applicability to any act or  omission in  course of service.  Its operation has to he  limited  to those  duties which are discharged in course of  duty.   But once  any  act  or  omission has been  found  to  have  been committed by a public servant in discharge of his duty  then it  must be given liberal and wide construction so  far  its official nature is concerned.  For instance a public servant is not entitled to indulge in criminal activities.  To  that extent  the  section  has to be construed  narrowly  and  in restricted  manner.  But once it is established that act  or omission  was done by the public servant  while  discharging his  duty  then the scope of its being  official  should  be construed  so as to advance the objective of the section  in favour of the public servant.  Otherwise the entire  purpose of affording protection to a public servant without sanction shall  stand frustrated.  For instance a police  officer  in discharge  of  duty may have to use force which  may  be  an offence  for  the prosecution of which the sanction  may  be necessary.  But if the same officer commits an act in course 324 of  service  but not in discharge of his duty then  the  bar under  section  197 of the Code is not attracted.   To  what extent  an act or omission performed by a public servant  in discharge  of  his  duty can be deemed to  be  official  was explained  by  this  court in Baijnath v.  State  of  Madhya Pradesh, AIR 1966 SC 220 thus,               "the offence alleged to have been committed by               the accused must have something to do, or must               be  related in some manner with the  discharge               of  official  duty.......  there  must  be   a               reasonable connection between the act and  the               discharge  of official duty the act must  bear               such  relation  to the duty that  the  accused               could  lay  a  reasonable  claim,  but  not  a                             pretended or fanciful claim, that he did it  i n               the course of the performance of his duty." If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection  with discharge of his duty then it must be  held to be official to which applicability of Section 197 of  the Code cannot be disputed. On   the  law,  thus,  settled  two  questions   arise   for consideration  one if the offence for which the accused  was charged  and of which cognizance was taken was committed  by him  during the period he was in Naval service and if it  be so then whether the violations were in discharge of official duty  or  they were beyond it.  For this purpose it  may  be mentioned that five charges were framed against the accused. First  two related to Section 3(i) and 3(1)(c) of  the  O.S. Act.   Third and fifth related to Sections 6(2)(a) and 5  of the  O.S.  Act and fourth related to violation  of  Sections 18(2)  and 19 of A.E. Act.  In the very first  charge  after narrating the period when the accused was employed and  when he  opted for voluntary retirement it is stated that it  was

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during  the  course  of  this period that  he  was  in  com- munication with foreign agents, within or without India  and for  purpose  prejudicial to the safety or interest  of  the State  he  obtained  and collected  top  secret  and  secret official  documents.   The High Court and the  Trial  Judge, both, found that it was clear that the documents which  were seized  from  possession  of the accused  and  were  subject matters  of indictment were obtained by him when he  was  in service prior to-his retirement in 1987.  Even the reference to  the  documents  in  the  charge  because  of  which  the Government  was  of opinion that the  accused  had  violated provisions 325 of  O.S.  Act  are mentioned to have been  procured  by  the accused  during course of his employment.  In view of  these averments, in the charge itself, it is very difficult to say that  the  offence for which the accused  had  been  charge- sheeted  were  not  committed when he was  in  service.   In respect of charge 2, the High Court found and in our opinion rightly  that  the use of words, ’during the said  time  and place’  related  back to what was stated in  charge  no.  1, namely, to the period when the accused was in service.   The High  Court further found and again in our opinion  rightly, that  ambiguity, if any, in charges 1 to 4 stood  completely removed  by  charge  no.  5 which left  no  doubt  that  the intention  and  purpose of framing the  charge  against  the accused  was to indict him for whatever he had  done  during the  period  when  he  was  employed  in  the  Navy  as  the alternative charge clearly states that during his deputation between 1976 and 1987 with B.A.R.C. he had access to  secret documents  which he communicated to the persons  other  than those  who  were  authorised to  receive  such  information. Charge  no. 3 related to retention of Identity  Card  during service  and  charge  no.  4 is in  respect  of  taking  out information in form of books pertaining to atomic energy the information of which had been obtained illegally, obviously, when  the  accused was in service.  Therefore,  the  act  or omission  which  furnished  foundation  for  indicting   the accused  either under O.S. Act or A.E. Act were  related  to the  period  when  he was in service.   The  narrow  or  the stricter  test to determine if the sanction for  prosecuting the accused was necessary was thus satisfied. What  remains to be examined is if the documents which  were found  in  possession of the accused and were  collected  or obtained by him when he was in service were procured by  him in discharge of duty.  But before undertaking this  exercise it  may be stated that Section 197 of the Code as it  stands after 1973, extends the protection even to a retired  public servant  as  is  clear from use of the words,  ’is  or  was’ provided the accusation is in respect of an act or  omission done or purported to have been done when such public servant was in office.  By legislative fiction the officer is deemed to  be  a  public  servant under Section  197  of  the  Code irrespective  of his retirement if the  accusations  against him  are  for  act or omission done by him when  he  was  in service.  The purpose is to avoid exposing a public  servant to vexatious or frivolous prosecutions merely because he has demited   his  office.   The  submission  of   the   learned Additional Solicitor General that if a public servant ceases to  hold the office by the time the Court is called upon  to take cognizance cannot claim any protection, being 326 in  teeth  of  the  section,  does  not  need  any   further elucidation. Reverting to the main issue the two courts below have  found

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it  as  a  fact that the acts or  omissions  for  which  the accused has been charged were committed by him in  discharge of his official duty.  To steer clear of the effect of  such finding the learned Additional Solicitor General urged  that in  view  of the charges framed under O.S. Act  the  accused could not claim any protection under Section 197 of the Code as espionage can by no stretch be taken to be official duty. The learned counsel submitted that the documents which  were recovered from possession of the accused were such as  could not have been in his possession when he had already  retired and  the  proper  custodian of  those  documents  being  the Central Government, no sanction was required for prosecuting the  accused for possessing such documents.  As a matter  of law  no  exception can be taken to the  submission  that  no public   servant  can  indulge  in  espionage.    But   mere allegation of spying cannot deprive a public servant of  the legal  protection provided for in Section 197 of  the  Code. Section 3 of the O.S. Act, no doubt, provides penalty if any person  acts  in  any manner prejudicial to  the  safety  or interest of the State.  This appeal is not concerned if  the accused  acted  in  such manner which can give  rise  to  an inference  in law that he was guilty of spying or  acted  in any  manner  to  affect sovereignty  and  integrity  of  the country.   The  limited question is if the  documents  which were  seized from the accused either at the airport or  from his residence are such that they could have been obtained or procured  by him while acting as Naval Officer in  discharge of his duty.  As is clear from the charge itself the accused was,  selected  in course of his employment in the  Navy  to study the feasibility of nuclear power, propelled  submarine vessel  along with a team of officers and was attached  with B.A.R.C.  as  second  officer in  command.   He  joined  the project  in  1976  and was associated with  the  Centre  for nearly  10 years.  The accused while working  with  B.A.R.C. not  only obtained Ph.  D. but was even awarded  gold  medal for  his  achievements in computer  technology  and  control engineering  and a special Herbert Lott Memorial  Award  for his  inventions in improving the existing, fighting  devices of  the  Navy.  It is not the case of prosecution  that  the documents  which were seized either from the airport or  the residence  of the accused could not have been dealt  by  him when  he  was in service.  Amongst various  documents  which were  seized  were  the Identity Card of  the  Indian  Armed Forces  bearing  his photograph and name,  the  eight  files containing  different types of maps of India,  diagrams  and computer information, a book by name ’Nuclear Power Plan’ 327 Modelling   and  Design,  one  brown  envelope   containing. lamination  papers  with  diagrams,  one  book  MWT  Nuclear Submarine  Propulsion Plant Design and one book Multi  Point Satellite  Links in Navnet System were also  recovered  from him.   The documents which were found at his  residence  on. 31st  May were computer communication on HF Links in  Navnet and  Advanced  Technology Adaptation Centre,  C-3  I  System Development for Armed Forces Advanced Technology  Adaptation for  Defence, Multi Point Satellite Links in Navnet  System, Government  of India publications project report of  Nuclear propulsion  for  Marine Application, one book about  Sea  on Control  Radar and Display System for Land Design.   Certain plan  design  of  B.A.R.C.  were  also  recovered  from  his possession.   Most of the documents which can be said to  be sensitive  which  were  recovered  from  the  accused   were admittedly either the book written by him or the paper  read by him as is clear from the Punchanama and the Statement  of Witnesses who were produced on behalf of the prosecution  to

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prove  the same.  Even the thesis written by the accused  on which  he  was awarded Ph.  D. by the  Bhabha  Institute  of Technology  was seized by the prosecution.  The  purpose  of stating  all this is to demonstrate that these  papers  were written  and  the  books  published  when  the  accused  was attached  with B.A.R.C. as a Second Officer-in-Command  and, therefore, the material or documents which were found by him cannot be said to have been collected or procured by him  by going  out of way and beyond the discharge of his duties  as an  officer  in the Naval Department.  May be some  of  them were  secret, confidential or unclassified items.   But  the accused came across them and obtained their copies in course of his duty as an officer attached to B.A.R.C. Charge No.  2 is in respect of classified information obtained by him when he was in Naval service.  Taking out of information obtained in course of employment was thus squarely covered by Section 197.   Whether  it  was  for communication  or  not  is  not material.  Retention of Identity Card issued during  service may  be dereliction, of duty but it was committed  when  the accused  was  in  service and it was  issued  to  him  while discharging his duties as a Naval officer.  The Trial  Court found that even though the Punchnama shows that two Identity Cards were recovered from the possession of the accused, but from  their perusal it appeared that the Identity  Card  was issued to the accused as a retired officer and  consequently the  claim  of  the prosecution that the  accused  acted  in violation  of the provisions of the Act was  not  justified. But assuming there was violation since it was done when  the accused  was in service he was entitled to protection  under Section 197 of the Code.  The High Court and the Trial 328 Court  appear  to  have,  rightly,  inferred  that  whatever material  came in possession of the accused was as a  result of discharge of his duty as a Naval Officer.  If this be  so then  even the second and the most important requirement  of acting   in  discharge  of  official  duty  was   satisfied. Therefore,  without expressing any opinion on merits we  are of the opinion that it was necessary for the prosecution  to have   obtained  sanction  for  prosecuting   the   accused. Similarly so far charge no. 4 is concerned we do not propose to examine if it was properly framed against the accused and if there was any material in support of it.  But the alleged information which the accused was taking with him to  United States  having been obtained by him in course of  employment and  in discharge of his duty the High Court did not  commit any   error  of  law  in  recording  the  finding  that   no prosecution could be initiated unless sanction under Section 197 was obtained.  Same applies to charge no. 5.  Therefore, we  are of opinion that the courts below did not commit  any error  of  law  in  coming to  conclusion  that  the  entire proceedings  were vitiated as no cognizance of the  offences could have been taken against the accused without  complying with provisions of Section 197 of the Code. Since the appeal fails for non-compliance of Section 197 and the order discharging the accused has to be upheld we do not propose  to examine the finding if authorisation under  O.S. Act and A.E. Act to prosecute the accused was valid or not. In the result this appeal fails and is dismissed.  Since the respondent   was   discharged  for  failure   of   mandatory requirement yet the State went on filing revision before the High Court and appeal before this Court and keeping in  mind the  mental  sufferings  and financial loss  caused  to  the respondent we are of opinion that the respondent is entitled to costs which we assess in peculiar facts and circumstances of this case at Rs. 25,000.

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N.V.K.                          Appeal dismissed. 329